Kansas Highway Patrol’s ‘Two-Step’ Tactic Tramples Motorists’ Rights, Judge Rules
A tactic known as the “Kansas Two-Step” that's been used by the state Highway Patrol for years to detain out-of-state motorists long enough to find a reason to search their vehicles for illegal drugs violates motorists' constitutional right against unreasonable searches, a federal judge declared Friday.
Senior U.S. District Judge Kathryn Vratil also notified the patrol that she is ready to impose changes in its policing practices and appoint a special master to audit its work for at least four years.
The changes would include a requirement that troopers specifically inform motorists they stop that they have the right to reject a search or to revoke consent for one at any time — when under the “Two-Step,” patrol officers avoid telling motorists they are free to go.
Vratil issued a scathing, 79-page order in two separate lawsuits filed by the American Civil Liberties Union on behalf of three motorists and two passengers traveling in 2017, 2018 and 2019 from neighboring Colorado, which has legalized recreational marijuana use.
Vratil concluded that the patrol targeted motorists traveling along Interstate 70 to or from states that have legalized either the medical or recreational use of marijuana. Kansas has authorized neither.
With the “Two-Step," troopers finish the initial traffic stop, issuing a ticket or a warning, and start to walk away, then turn back to talk more to the motorist. That allows them to keep looking for grounds for a vehicle search or to buy time to get drug-sniffing dogs to the scene.
Vratil said the patrol “waged war on motorists.”
“The war is basically a question of numbers: stop enough cars, and you're bound to discover drugs. And what's the harm if a few constitutional rights are trampled along the way?” she wrote.
Neither the patrol nor Kansas Attorney General Kris Kobach's office responded immediately to text and email messages seeking comment Friday. The patrol has defended its tactics as a response to I-70 serving as a major “corridor” for drug traffickers.
Vratil listed nearly four pages of restrictions on the patrol's policing that she plans to impose, giving the parties in the lawsuits until Aug. 7 to tell her in writing why she shouldn't. Troopers would be required to get a supervisor's approval to conduct a vehicle search, and the patrol would have to keep a log of all such requests and who approved them.
The judge, an appointee of Republican President George H.W. Bush, said she would require troopers to “affirmatively inform” motorists of their right to refuse to allow searches of their vehicles. She concluded that that troopers “are more than happy to exploit (motorists') lack of knowledge of their legal rights” and “pressure drivers to submit to extended detentions," so that they "do not feel free to leave.”
The ACLU of Kansas and other civil rights advocates have argued for years that the patrol has subjected out-of-state motorists to searches that violate the Fourth Amendment to the U.S. Constitution that protects people against unreasonable searches and seizures.
“This is a huge win — for our clients and for anyone else who travels on Kansas highways,” Sharon Brett, the ACLU of Kansas' legal director, said in a statement. "It also demonstrates that courts will not tolerate the cowboy mentality of policing that subjects our citizens to conditions of humiliation, degradation, and, in some tragic cases, violence.”
Questions about the patrol's tactics became more visible after Colorado legalized recreational marijuana almost a decade ago. Missouri did the same in 2022, and Oklahoma allows the medical use of marijuana. Only a handful of states don't allow at least medical use.
Vratil wrote that state traffic laws create a host of possible reasons to stop a motorist initially. But she added that the factors troopers used to justify having a “reasonable suspicion” about a possible drug crime — such as a motorist's travel plans — “are so ordinary and benign" that they could apply to thousands of drivers.
The judge also noted that troopers are trained to end their initial traffic stop with phrases such as “have a safe trip,” “take care,” or “have a good day.”
“The KHP trains troopers not to inform a motorist that he or she is free to go,” Vratil wrote.